Oracle’s Java lawsuit undermines its open source credibility

Oracle's lawsuit against Google for its use of patented Java technology raises …

Thursday, Oracle filed a patent infringement lawsuit against Google, accusing the search giant of infringing on patented Java technologies in its Linux-based Android mobile operating system. Even though Oracle appears to have a solid basis for legal action, the lawsuit could permanently burn bridges between Oracle and the broader Java ecosystem. Such blatantly antagonistic litigation sends a clear message to the open source software community that Oracle is a hostile and abusive interloper rather than a contributor.

It raises very serious questions about the company's stewardship of other open source technology that it obtained during the acquisition of Sun. The resulting uncertainty will likely not be conducive to retaining the customers and mindshare that Sun had built around certain open source products. It will also likely have a serious chilling affect on community involvement and third-party contributions. It's important to recognize that the impact of this lawsuit will be felt far beyond the scope of Java and will also influence perceptions of other key open source projects obtained by Oracle, such as the MySQL database system.

Is Oracle standing on firm ground?

An obvious question is how Oracle can sue Google for using intellectual property that was ostensibly made available under royalty-free terms when Sun opened the Java source code. Our investigation of the licensing issues suggests that Oracle does, in fact, have the law on its side—if the patents are valid and applicable.

When Sun opened the Java technology and released the programming language under the terms of GNU's General Public License (GPL), it added a special exception to the license to ensure that applications which link against Java would not be roped in by the copyleft provisions. Such an exception was not made available, however, for J2ME—Sun's mobile variant of Java. Companies that want to use J2ME for commercial closed-sourced development have to pay licensing fees to Sun. Google avoided paying those licensing fees, because it built its own totally independent Java runtime, compilation mechanism, and bytecode format rather than using J2ME itself.

Sun also provided royalty-free patent grants for the specific intellectual property that is needed to develop a clean-room implementation of the specification. This grant covers only complete and fully compliant implementations, not implementations that provide a subset or superset of the Java environment. Oracle may very well have a case on the basis of Dalvik's deviations from the actual Java standard.

A counterargument that has been raised by some members of the open source software community is that the GPL itself mandates a patent grant, which might hypothetically mean that Google could insulate itself from litigation by simply integrating code from OpenJDK into Dalvik (Google's custom-built VM). One proponent of that viewpoint is open source software consultant Carlo Daffara.

It's important to remember, however, that the GPLv2 doesn't include an explicit patent grant—it only includes a very loosely worded statement in the preamble calling for free patent licensing. It's generally assumed that this language isn't legally binding. As some might remember, that is the very same loophole in the GPL that Microsoft and Novell exploited when they established their controversial patent agreement in 2006. The loophole was later closed in GPLv3, which made the patent grant explicit. Because Sun used GPLv2 as the basis for its OpenJDK license, it means that there is no explicit GPL-based patent grant for OpenJDK and implementors must rely on Sun's own separate patent license, which only covers complete implementations.

Bad timing and burned bridges

Oracle had a significant presence this year at the Linux Foundation's annual LinuxCon conference. The company was a major sponsor and touted its enthusiasm for the open source community during a keynote address. In light of the lawsuit's timing, it's obvious that Oracle deliberately waited until after the conference was over before announcing it was suing Google. The move reflects Oracle's unwillingness to publicly account for the egregious inconsistency between its message of enthusiasm for open source software and its aggressive conduct towards other companies in the ecosystem.

Oracle is arguably shooting itself in the foot, because Android has helped to restore Java's relevance as a client-side programming language as well as attract developers. With the lawsuit, Oracle is seriously undermining Java's prospects for growth outside of the enterprise server software space.

In addition to impairing Oracle's open source credibility, the lawsuit could also have a detrimental impact on the adoption of the Android platform. It's obvious that Oracle wants to extract licensing fees from Google for its use of Java, but it's unclear what form the license will take and whether it will be possible for Google to obtain a license that provides blanket protection to downstream distributors, such as mobile carriers and handset manufacturers that ship the operating system.

Reaction

Novell's Miguel de Icaza, who is best known for his role in creating an open source implementation of Microsoft's .NET framwork, believes that Oracle will likely attempt to shake down individual hardware manufacturers and not just Google. This could make the cost of adopting Android significantly more expensive than it is today, potentially reducing the momentum of its adoption.

He also theorizes that former Sun CEO Jonathan Schwartz "shopped Sun with a big 'Sue Google' sign." What he means is that Sun may have specifically highlighted the potential value of enforcing the Java patents against Android when it described its assets to prospective buyers prior to finally being acquired by Oracle.

Simon Phipps, the former head of Sun's open source strategy, doesn't believe that there is any evidence to support that claim. Neither Phipps nor de Icaza have specific knowledge of whether Schwartz highlighted the value of such litigation, but de Icaza points to a statement from Java creator James Gosling, who says that Oracle's lawyers were pretty excited about the prospects for cashing in on the patents during talks that took place during Sun's integration into Oracle. This lawsuit is clearly something that Oracle has been thinking about since at least the early stages of integration, if not before the acquisition even started.

In a statement earlier today, Google said that Oracle's lawsuit is "baseless" and that it represents an attack against the broader open source Java community.

"We are disappointed Oracle has chosen to attack both Google and the open-source Java community with this baseless lawsuit," Google told TechCrunch. "The open-source Java community goes beyond any one corporation and works every day to make the web a better place. We will strongly defend open-source standards and will continue to work with the industry to develop the Android platform."

Google makes it clear that it is going to stand behind Android. The company has not, however, indicated whether it will indemnify or protect Android adopters. Significantly, Google has not come to the aid of HTC, a handset maker that is currently facing patent litigation from Apple over technology in Android. Fearing Oracle, some handset makers might shy away from Android until the dust settles and the intellectual property landscape is easier to navigate. This could work to the advantage of alternative open source mobile platforms such as MeeGo, which doesn't rely on Java.